Eldon R. Kenseth and Susan M. Kenseth - Page 82




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              7. Omissions and Distortions:  the Majority Opinion                       
              The majority opinion makes a caricature of the findings it                
         purports to adopt by ignoring some and distorting others.56                    
         Some examples:                                                                 
              First, on the meaning and application of the term “control”:              
         neither “control” nor “lack of control” is a monolithic concept,               
         nor do they occupy opposite sides of the same coin.  Many                      
         elements or strands are braided into the ownership and control of              
         a claim or cause of action.  The question is whether enough                    
         elements of control over all or part of the claim are given up by              
         the client who enters into a contingent fee agreement to make it               
         inappropriate to include the entire amount of the recovery in the              
         client’s gross income.  The correct answer is to allocate the                  
         recovery in the first instance between attorney and client as                  
         their interests may appear in accordance with the terms of the                 
         contingent fee agreement.                                                      
              Petitioner gave up substantial control over his claim, and                
         all control over the portion attributable to the contingent fee.               
         Even if Smelker v. Chicago & N.W. Ry., 81 N.W. 994, 994 (Wis.                  
         1900) is no longer good law under the Wisconsin attorney’s lien                
         law and the Wisconsin ethical rules require an attorney to abide               
         by a client’s decision to accept an offer of settlement, the                   


               56 In so doing, the majority opinion creates a mismatch                  
          between findings of fact and opinion that is reminiscent of the               
          centaur in Greek mythology.                                                   





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